Tuesday, September 19, 2017

Endorsement Guidelines for Social Media Influencers

Social media influencers have become an essential component of many marketing campaigns.  Influencers have audience that listens to what they say.  Building a relationship with an influencer enables the brand to reach the influencer's audience that is more likely to buy the brand's offerings based on a peer review rather than ads. Many big brands ask influencers to partner with them and offer them compensation for posting blogs, tweets or videos about their products.

All this is legal so long as influencers clearly disclose what, if anything, they get from the brands in return for their posts as well as any relationships that exist between them and the brands.  In March 2017, the Federal Trade Commission ("FTC") issued more than 90 letters to brands and influencers warning them about appropriate disclosures.  Some of these letters are available here.  

In the letters, the FTC reminded both endorsers (influencers) and marketers (brands) that endorsers must disclose any "material connection" that exists between them because such connection can influence the weight or credibility that consumers give to the endorsement.  A "material connection" may consist of a business or family relationship, monetary payment, or the provision of free products to the influencer.   

The FTC letters refer to the Endorsement Guides that apply to both marketers and endorsers.  There is also a helpful FTC staff publication "The Endorsement Guides: What People are Asking" that describes the Guides in a Q&A format.  The publication explains that if an endorser is acting on behalf of an advertiser, then what the endorser is saying becomes commercial speech that may violate the FTC Act if it is deceptive.  

It doesn't mean that endorsers have to disclose everything.  The test here is whether knowing about the gift, the incentive or the special relationship would affect the weight or credibility the viewers give to the recommendation.  There is no needed disclosure if the influencer bought the product herself.  There is also no needed disclosure if the store was giving out free samples to all its customers and the influencer received one of them.  However, disclosure would be warranted if the brand / advertiser gave something of value to the influencer in exchange for posting a review.  For example, a reviewer of restaurants would need to disclose if she received any free meals at the places she reviewed.  Or, in my case, I would need to disclose in this blog if I wrote a review of a book that the publisher sent to me for free.  Or, according to the FTC letter, Sean Combs would have had to disclose that he is the owner and director of AQUAhydrate when he posted on Instagram a picture of two bottles of AQUAhydrate water and wrote "Let's GO!!! @aquahydrate #balance #hydrate #tryIT."

So, to summarize: 
  • Endorsers must disclose all material connections, including financial, family or friendship ties to the brands;
  • Such disclosures must be clear and conspicuous, such that they appear above the "more" button in an Instagram post and are not hidden among the hashtags; and
  • Endorsers should avoid unclear and confusing hashtags.
This article is not a legal advice, and was written for general informational purposes only.  If you have questions or comments about the article or are interested in learning more about this topic, feel free to contact its author, Arina Shulga.  Ms. Shulga is the co-founder of Ross & Shulga PLLC, a New York-based boutique law firm specializing in advising individual and corporate clients on aspects of corporate and securities law.

Sunday, September 17, 2017

Why Small Businesses Need Buy-Sell Agreements

One of the agreements that comes up time over time in my practice is a buy-sell agreement.  These are contracts between shareholders of a corporation, partners of a partnership or members of a limited liability company and the business entity itself (although, as you will see, this is optional).  The buy-sell agreements ensure that the business interest of either deceased, disabled or departing owner is transferred to the entity or the co-owner(s) according to the predetermined and agreed upon guidelines.

Why Do You Need a Buy-Sell Agreement

In the absence of a buy-sell agreement in the case of death, the decedent's business interest will pass by the terms of his or her will or the laws of intestacy. This means that the remaining owner could become business partners with people who have little or no interest in running the business or the necessary skills to do so.  Alternatively, the heirs could sell the decedent's interest in the company to an unknown outside buyer who may not unfriendly to the remaining owner.  A buy-sell ensures business continuity while providing the needed cash to the deceased partner's family to handle estate tax and funeral expenses.

A buy-sell agreement can also resolve issues surrounding a business owner's disability.  Imagine a business owner who is critical to the business' operations but becomes disabled.  This could potentially be devastating for the business.  The remaining owner would be left alone to handle business operations while trying to figure out for how long to pay the disabled partner and from what source.  The disabled partner may want to be bought out, or his or her spouse and children may want to step in to run the business instead.  The disability buy-sell addresses the issue of the purchase of the disabled owner's interest, continued salary payments and management continuity.

Buy-sell agreements are also used in the cases of:
  • termination for cause (such as when the owner stops performing his or her duties or becomes convicted of a crime)
  • personal bankruptcy 
  • divorce
  • voluntary retirement
  • loss of professional license.
Funding Buy-Sell Agreements

There are four different ways to fund a buy-sell.

One way is to put aside cash from earnings and create a savings plan, often referred to as the sinking fund.  The danger here is that the fund could get diverted to pay for urgent business-related expenses, leaving the buy-sell underfunded.

Another way is to borrow the money.  However, not all businesses can obtain good terms on a loan.  Also, loan repayment would decrease the company's cash flow and impact credit availability.

The third way is to pay the buyout price over an installment period that is agreed to ahead of time in the buy-sell agreement.  Here, it is the departing owner who faces most of the risk.  He or she risks not getting the full buyout price if the business fails, since the ability to grow the business is now in the hands of the remaining partner(s).

The fourth and final way is to buy life or disability insurance on the lives of the owners.  A permanent insurance policy can also be used for retirement buyouts. However, insurance is not available for all types of buyout scenarios outlined above.  So, some combination of the payment methods is needed to fund a  comprehensive buy-sell agreement.

Entity or Cross-Purchase Buy-Sell

One last thing that I'd like to mention is that sometimes it makes more sense for the owners to buy insurance on each other (a cross-purchase arrangement) than for the company to do so (stock redemption).  In such cases, the company itself is not a party to the agreement.  Each individual partner is the owner, beneficiary and premium payor of the policy on the life of the co-owner.  This may make sense from the tax planning perspective.  I am not a tax specialist, so I encourage to consult with one about this.

If, for example, there are two owners, each of whom has invested $100,000 in the business and holds 50% of its stock.  The company is currently valued at $700,000.  Owner A dies.  The company uses its death insurance proceeds to buy out A's shares.  A's shares become treasury stock.  B remains the sole owner of the corporation.  B's shares are now valued at $700,000 - the full value of the corporation.  B's basis in the stock is $50,000.  When he sells his shares, he realizes taxable gain of $650,000.  On the other hand, if A and B cross-insured each other, then upon A's death, B would pay $350,000 to A in insurance proceeds to purchase A's stock.  B's basis in the stock would then be $400,000.  So, his realized taxable gain on the sale of this stock would be much smaller, $250,000.  In this oversimplified scenario, using a cross-over arrangement results in significant tax savings for the surviving partner.

In conclusion, I recommend for all small and closely held businesses to consider entering into buy-sell agreements or including buy-sell provisions in their shareholder, partnership or operating agreements.  Drafting buy-sell agreements requires not just legal, but also financial and tax expertise.  It is worth the investment of time and money to ensure successful business continuation.

This article is not a legal advice, and was written for general informational purposes only.  If you have questions or comments about the article or are interested in learning more about this topic, feel free to contact its author, Arina Shulga.  Ms. Shulga is the co-founder of Ross & Shulga PLLC, a New York-based boutique law firm specializing in advising individual and corporate clients on aspects of corporate and securities law.


Monday, March 13, 2017

SaaS Contracts vs Software License Agreements

Just like technology itself, technology contracts are becoming more and more complex.  Yet, the legal theories that apply to them remain the same. Understanding the technological aspects of the transaction allows attorneys to apply correct legal terms.  Here is an example that I have encountered in my practice.

Software license agreements are used when a proprietary software is being licensed by the licensor to a licensee.  The licensor has an interest in copyrights, patents, trade secrets and other IP rights in the software and related documentation.  A license is a limited grant of those rights.  A software license can be exclusive or non-exclusive, may be limited to a specific geographic territory, with or without a right to sublicense and transfer, with or without a right to make and store copies, and with a limited scope of access and use.  All this assumes that the software needs to be downloaded or installed on the licensee's platform/network/computer.

A traditional software license described above does not apply to software-as-a-service (SaaS) contracts because the customer does not download or install copies of the software.  The customer remotely logs into the vendor's system to access and use the software, usually through the Internet.  The vendor (or its provider) hosts the software either on its server or in the cloud.  So, essentially the vendor provides a service to the customer, which consists of hosting its software and performing services to support the hosted software and granting access to the hosted software.  This is the reason why SaaS contracts do not typically have a license grant, but talk about authorization to access.  There is very limited, if any, customer customization because the software configuration is mostly uniform throughout the vendor's customer base.  Maintenance and service of the software become very important.  Typically, there are multiple service levels that are carefully negotiated.  Fees are based either on a subscription model or the volume of customer's use.  

So, why would a SaaS vendor prefer to grant a license rather than an authorization to access the SaaS services?  One reason is because in the case there is unauthorized access or use of the SaaS services, the vendors will not be able to claim an IP infringement unless there was a previous license grant.  It could still have a claim for theft of service, trespass to chattels, or a violation of the Computer Fraud and Abuse Act, but not an IP infringement.

However, a grant of an IP license creates an additional risk which probably outweighs the point I just made.  In the case of bankruptcy, the vendor may stop performing its contractual obligations, including SaaS services.  However, the Bankruptcy Court may compel the vendor to keep on performing the services if they are provided under an IP license because Section 365(n) of the Bankruptcy Code protects the right to continue to use "licensed intellectual property" but not the services.  The customer could also get a copy of the software's code and self-host it.

Now, let's complicate things a bit.  If the customer hosts the software (as opposed to the vendor or a third-party provider), the customer would need a software license (not an authorization) because it would need to make copies of the software.

As you can see, the only way to draft a correct agreement is to understand the technological aspects of the deal.

This article is not a legal advice, and was written for general informational purposes only.  If you have questions or comments about the article or are interested in learning more about this topic, feel free to contact its author, Arina Shulga.  Ms. Shulga is the founder of Shulga Law Firm, P.C., a New York-based boutique law firm specializing in advising individual and corporate clients on aspects of corporate, securities, and intellectual property law.